Volume 4 — Delaware Chancery

Bill in Equity —The facts alleged by the bill and admitted by the answer were as follows: Henry Rumer died January 29, 1865, having made his will, dated the 22d of the same month, and the same after his death was duly proved.

Writ of Sequestration :—A decree having been entered in this cause, February 19, 1857, and not having been performed by the defendant, and an attachment, issued to compel the performance of the decree, having proved ineffectual, G. B. Rodney, for the complainant, having read an affidavit setting forth the facts upon which the application proceeded, moved for a writ of sequestration in order to make available a debt due to the defendant by a resident of this State.

<p>Bill in Equity. Motion For Receiver.—This bill was filed to obtain a dissolution of a partnership existing between the complainant and the defendant Wilson. The partnership was equal as to capital and as to the division of profits and losses, The defendant Wilson had become insane and had been so found upon inquisition and the defendant Austin had been appointed trustee.</p>

Injunction Bill.—The bill was filed to restrain the defendant Hagany from paying over a certain fund in his hands, being the proceeds of sale under executions issued upon certain judgments against the defendant and Lawson, who had been the partner of the complainant. The first executions were those of McDowell & Co., for $2196.15 and $1530 respectively. The proceeds of sale in the Sheriffs hands amounted to $2700.17.

Bill for Specific Performance.—William Dunlap deceased by his will devised all his real estate to his wife Sarah M. Dunlap “to be fully enjoyed by her during “her natural life.” He further directed “at the decease “of his wife, that the real estate aforesaid be sold at pub- “ li c or prívate sale, as soon thereafter as asuitable sale “ can be effected, not to exceed one year after the decease “of the aforesaid Sarah M. Dunlap” and provided for the disposition of the proceeds…

Bill in Equity for Contribution.—This was a bill filed by the complainant who sought to be reimbursed from the estate of Wrexham McIlvaine deceased, for a portion of the amount of a judgment recovered against and paid by the estate of Samuel W, Chambers deceased, who had been a co-executor with Wrexham McIlvaine of John G. Chambers deceased.

Bill in Equity.—The complainants were the children of Lewis C. Flinn, deceased, and under his will were each entitled to one-third of two-thirds of the residue of his estate to be held by his executors at five per cent, per annum from one year after the testator’s decease until they should respectively arrive at the age of twenty-one years, and subject to a limitation over as to the share of each upon his or her dying under that age.

On June 30th, 1867, the interest for one year, and the first installment of the principal became due ; and being unpaid, the plaintiff alleged that the estate mortgaged to him became absolute ; that the mortgaged premises were but scanty and precarious security, and that he was .without remedy at law.

On June 24th the defendant Ellegood filed his petition for further security in the injunction bond.

Bill in Equity.—This case arose upon the following facts: Samuel L. Grubb, by his last will and testament, dated June 4th, 1867, bequeathed and devised (inter alla) as follows “Item. All the rest and residue of my estate, real, “ personal and mixed, to which I may be entitled, in any “ manner, at the time of my death, I hereby direct my “ executor to convert into money within one year after “ my decease.

Petition for Partition.—The petition set forth the title to the lands held by the parties, as tenants in common, as derived from Joseph T. Sarchett, from whom, through two mesne conveyances, the respondent acquired an undivided equal half part, and through one mesne conveyance, the petitioner derived the other equal half part, of two tracts of land, containing three hundred and fifty, and one hundred and fifty acres respectively.

Bill in Equity.—This case arose upon the following facts :—Lydia Ann Brown, by deed dated December 30, 1858, conveyed unto Hugh Cox certain real estate, upon certain trusts for her lifetime, with this further trust, that after her decease the trustee should, “ grant and “convey the said premises and every part thereof unto “ such person or persons and for such estate and estates “and interest as she the said Lydia Ann Brown by her “last will and testament, or by any writing…

Bill in Equity for an Account.—The material facts were not in dispute, the question discussed arising upon the construction of a certain contract. It appeared that on the 22d of August, 1859, Allen V. Lesley sold and conveyed to Charles Schock a farm in Kent county for the consideration of which he took from Schock an assignment of a bond of John Fleming with a mortgage for $4,500 upon a farm in Sussex county, which Schock had sold to Fleming.

Bill IN Equity.—This bill was filed to recover, from' the principal in a judgment bond, money paid by one of several sureties, under these circumstances:— William Wilson gave his judgment bond for $670, dated March 2d, 1852, to the Farmers Bank at Georgetown, with Barkley Wilson, Joshua Marvel, James Wilson and Silas Reynolds as sureties. Judgment was entered on this bond and execution issued.

Case Stated in Equity.—Wm. B. Parsons, by his last will dated February 7th, 1867, bequeathed to his daughter Lucinda, then and now the wife of the complainant, $400, in these words : “Item, I give and bequeath to “ my daughter Lucinda C. Wingate, the sum of four hun- “ dred dollars, to be paid out of my personal estate to “ her, her heirs and assigns. Wingate the husband was indebted to the testator, at his decease, in a sum exceeding the amount of the legacy.

Bill in Equity.—The material facts of this case are as follows :— Richard Thomas died Feb. 24, 1870 and letters of administration upon his estate were granted to George Gray, Esq., the complainant.

Bill for Injunction.—This was a bill in equity to restrain the defendant from taking up a side track which connected their railway with the works of the complainant for the manufacture of railroad cars, in the City of Wilmington. The case arose out of these circumstances : Messrs.

Bill in Equity kor an Injunction and Account, AND CROSS-BILL.—The original bill was filed by Plunkett to obtain an injunction to restrain Dillon from proceeding against him in two suits at law and for the establishment of a settlement alleged to have been made between them or if that be rejected as a settlement then for an account between the parties. The original bill was filed in November 1870 and Dillon’s answer was filed at the ensuing February term.

Bill IN Equity.—This bill alleged the following facts : Esther Coverdale being seised of 316 acres of land, on December 27, 1865, made her will and authorized the sale of her real esfhte by her executors, the proceeds to pay debts and then to be applied to the purposes of the will ; meanwhile the executors were empowered to receive and apply the rents.

Injunction Bill. Motion to dismiss.—This cause came before the Chancellor upon a motion to dismiss the bill for want of equity and to dissolve the injunction. The case made by the bill was as follows :—The complainant David S. Wilds became surety for one Joseph E. Williams in a judgment bond to the defendant Thomas Attix for $500.00 dated March 16, 1866, Attix being, as alleged, cognizant of the fact that the complainant was surety only.

<p>The defendant in a suit, against whom a decree had been made, discharged from an attachment for costs, upon the ground of insolvency.</p>

Bill to Perpetuate Testimony.—The complainant was in possession of certain real estate late of his deceased wife, situated in Kent county, holding as tenant by the curtesy; his title, as such, being controverted on behalf of defendants as the heir at law of the wife. The controversy turned upon the question whether a child of the deceased wife, by the complainant, was born alive.

Bill in Equity for the Removal of a Trustee and FOR AN INJUNCTION.—This bill is filed for the removal of the defendant, Edmund Stout, from his trusteeship of certain funds held by him under the residuary clause of the will of John Chambers, deceased, for the use of the complainants, Hester Ann Massey and Luanor F. Barrett, during their respective lives, and afterwards, for their children.

Bill by Executor for Instructions.—This bill was filed by John W. Warren, executor of the last will and testament of Elijah Morris, deceased, for the instruction of the Court as to his duty as executor and the rights and interests of the parties claiming under the said will. The will was executed December y, 1861, and duly probated March 25, 1868, the testator having died February 26, 1868.

Bill in Equity to set aside a Deed.—This bill is filed to set aside a deed, dated August 18, 1847, purporting to have been executed by Mary Houston, deceased,… Held: and whether or no said Thomas Jamison then said that his mother made no deed to him for the farm in her life time, and whether or no he also stated that, after the death of his mother, Mary Houston, he had found a deed, and if yes, state from whom or by what means he obtained possession of it. Declare fully. 14.

Bill for Specific Performance of a Contract.— This bill is filed for the specific performance of a covenant, by the defendant, for the assignment of an interest in a certain patent held by him for an improved grate-bar, to be used in the furnaces of steamboats, locomotives, heaters, &c. .

This was a Bill in Equity, filed by the complainant as administrator of Richard Thomas, deceased, to obtain a construction of the will of Samuel Thomas, deceased. .The case was argued before the Chancellor at the February term, 1871, and the opinion delivered upon the questions which had been discussed, the Chancellor holding that the surplus of rents and profits devised in trust for Richard Thomas’ maintenance were subject to a resulting trust to the heirs at. law of Samuel…

Bill for Injunction to stay Proceedings at Law.—The facts of this case, as found by the Court, were substantially as follows : N George Tunnell, one of the administrators of Miers Burton, deceased, was removed from his administration on October 2, 1842. He had previously passed three testamentary accounts, shewing large unappropriated balances in his hands distributable between the widow and children of the intestate, amounting in the whole to $31,762.

Bill in Equity by a Surety.—This was a bill filed for re-imbursement to a surety of money paid for his principal under the following circumstances:—William W. Wilson,the defendant’s intestate,together with Barkley Wilson, Josiah Marvel, James Wilson and Silas Reynolds, on the 2d of March 1852, executed their judgment bond to the Farmers’ Bank at Georgetown for $670.

Bill in Equity against a Guardian by his WARDS.—At the March Term of the Orphans’ Court, 1867, an order was made for the sale of certain real estate of the complainants, Edgar C. Downs and Ella Downs, infants, by Elias S. Reed, Esq., as trustee of the Court. On the 29th June, 1857, the real estate was exposed to sale by the trustee and bid off by Henry Downs at $3750.

Bill in Equity to establish a Resulting Trust AND FOR AN Account.—This bill was filed by Amor H. Harvey, as the surviving partner of the late firm of Hollingsworth, Harvey & Co., against the executor and devisee of his deceased co-partner, Achilles Hollingsworth.

<p>Injunction Bill.—The facts alleged in the bill were substantially as follows :—The complainant was the owner' of certain land on the Easterly side of Shipley street, between Eighth and Ninth streets in the city of Wilmington, the Northerly boundary of which was an ancient enclosure or partition composed partly of an old brick wall and partly of an old wooden fence. The complainant and his grantors had held the open, notorious, continued and adverse possession of the said lot to said old wall and fence, The defendant had torn down this old partition and commenced building a house wall encroaching at one end, upon the complainant’s land, at one point about ten inches and at the other end about eight inches beyond the centre line of the said old wall.</p>

Injunction Bill.—This was a bill for an injunction to restrain the corporation of the City of Wilmington from awarding to any other person than the complainant, Martin Keogh, a contract for the macadamizing of Fourth street, and for an order that the contract be awarded to the complainant upon the terms of his bid for it made under certain proposals advertised by the Street Committee.

Bill in Equity.—This bill was filed by the complainants to obtain a construction of the provision in the will of Peter Hendrickson, Senior, deceased, directing sale of his real estate. The testator died June second, 1843, seized of the real estate in question. Those portions of his will which were material are as follows:—“Item. My will is that “all my just debts and funeral expenses be paid as soon as “ convenient after my decease.

Bill in Equity for an Injunction and to Impeach a Judgment.—-This bill seeks to enjoin an execution, issued upon a judgment, entered in the Superior Court for New Castle County, No. 661 to May Term, 1870,'for $2950, at suit of William Herbert, late sheriff, against Jacob Staats and David Staats. It also seeks a decree to set aside the judgment.

Bill of Interpleader.—The facts set forth in the bill, and not controverted, were as follows:— Dawson Nelson bequeathed to his executors the sum of one thousand dollars in the following words : “Sixth,— “I give unto my Executors, hereinafter named, one thousand dollars ; in trust, nevertheless, to receive the “interest and income thereof, and lay the same out from “time to time, at their discretion, or at the discretion of “ the survivor of them, for the use and benefit of…

Bill in Equity.—This case arises under the following circumstances. William B. Horsey and John E. Martin, lately trading under the name and style of John E. Martin, at Seaford, in this State, became indebted to sundry creditors in the City of Baltimore whom they were unable to pay. In September, 1866, Horsey visited Baltimore with a view to effect a settlement of the debts.

Injunction Bill.—The General Assembly, by an act passed March 23, 1871, provided for draining the swamps and low lands on the main branch of the Nanticoke River and its tributaries, lying partly in Sussex County and partly in Kent County.

Bill in Equity.—On the 12th October, 1870, complainant executed his judgment bond to the defendant for $3,700, as a security for such balance as might be found due to the defendant upon a settlement to be thereafter made between them. The proposed settlement was to include certain judgment debts which had been paid for the complainant, by the defendant as his surety, amounting in the whole to $3,454.60, and also was to embrace some mutual accounts then existing between them.

<p>Information in Equity.—This was an information filed by the Attorney-General upon the relation of certain citizens and inhabitants of the city to restrain the city authorities from consummating the purchase of certain lands intended for a public park.</p>

Bill in Equity.—This was a bill filed by the complainants to enforce payment by the defendant of a note made by himself and Warren S, Layton a former husband of Mrs. Fox prior to her marriage with Layton, and which it was claimed by the defendant had been extinguished by the marriage. The facts, which were not in dispute, were as follows :— Prior to 1865 the defendant and Warren S. Layton were partners in business under the firm-name of Warren S. Layton & Company.

<p>The defendant, who had been imprisoned for contempt for the non-performance of a decree, discharged from his imprisonment because he had become of unsound mind.</p>

This was a bill filed by the widow of David W. Gem-mill, deceased, to recover what is termed equitable dower out of the surplus proceeds of certain real estate, sold since his death under two mortgages in which the widow had joined. The gross proceeds of the mortgaged real estate were $16,500. The whole sum applicable to the mortgages was $9968,55, leaving a surplus of $6531,45. The widow’s claim was to have one-third of this sum invested for her benefit during her lifetime.

Petition for Authority to Convert Trust Funds from Personalty into Realty.—This was a petition by Thomas J. Jordan,trustee under the last will and statement of David C, Wilson deceased.

This was a BILL for the specific performance of a contract for the conveyance of a house and lot situated in the town of New Castle. The property was purchased by Mark M. Cleaver, in October, 1866, for the complainant, under an agreement, of which Cleaver afterwards gave a written memorandum in these words : New Castle, Feb. 23, 1867.

Bill for Injunction.—It appeared that the complainant was the owner and occupier of a dwelling house, situated in the town of Smyrna, and adjoining on the Northerly side an unimproved lot of the defendant. In the complainant’s house were several windows overlooking the defendant’s lot and through which light and air were received into the house.